The Legal Aid Agency has been criticised for its lack of cooperation in determining who should bear the cost of translating documents during court proceedings.

The agency was invited by Her Honour Judge Lynn Roberts, sitting at Chelmsford Family Court, to clarify its position and the legal basis for it in care proceedings brought by a local authority. The matter pertained to Polish parents who were entitled to non-means-tested and non-merits-tested legal aid who were unable to read untranslated documents. 

In her judgment, Suffolk County Council v The Mother and The Father and The Child, Roberts highlighted ‘fruitless’ attempts to get the agency to ’provide a clear view’ of its position ’and equally importantly, the basis for [its] position’.

The agency, she said, was invited to intervene in the case ‘in order that a decision could be reached by the court which could be relied on in this case and in others with the benefit of the LAA’s considered position’.

Roberts said she was surprised to receive an email from the agency in which it declined the invitation and suggested that costs be split equally between the parties involved. This was one of four options put forward to the court by the local authority.

Roberts said the agency, in its ‘disappointing’ email, not only misunderstood the position of the local authority but also failed ’to set out any basis for the decision or clarify whether this is in fact a decision or merely “a suggestion”’.

The agency did not attend court to make representations or respond to an invitation by the father’s lawyer to clarify its position, the judgment stated.

‘The LAA has had every opportunity to participate fully but have failed to assist the court or the parties by clarifying their position or the legal basis for it,’ Roberts said.

Roberts, not believing it to be correct that costs should be shared equally, said the role of translators was ‘comparable to that of interpreters’.

‘HMCTS pays for interpreters to assist parties at hearings; it is for the solicitor to arrange via public funding for interpreters to assist parties at hearings; it is for the solicitor to arrange via public funding for interpreters to attend court for the purpose of taking instructions outside court (although this is often overlooked),’ Roberts said.

‘It is also for the solicitors to arrange via public funding for interpreters to attend their offices for the purpose of assistance in taking instructions and giving advice. I do not see why written documents should be treated differently.’

Roberts ordered that the cost of translating the documents filed and served during the proceedings be paid by the party requiring the translation ‘provided that party is publicly funded’. As a result, the agency would bear the costs incurred on that party’s public funding certificate.

But ‘only such documents or parts thereof which are necessary for the party to have translated in order to understand the case as it relates to that party shall be translated’, she ordered.

Roberts said no discussion in relation to the position of parties who were not publicly funded, such as interveners or family members, had taken place ‘because it was not relevant to the case’.

‘Nothing I have said in this judgment should be read as implying anything about the funding of translation which may be necessary in such cases’, she added.

A Legal Aid Agency spokesperson said: ‘Legal aid can be provided for translation services where appropriate. We have been in contact with the court in relation to this case and have established that funding can be provided in these particular circumstances.’